I've admired Yale law professor (and novelist) Stephen Carter for many years, and his essay on the root causes of the Eric Garner-chokehold death-selling loosies outrage didn't disappoint.  (HT:  Ilya Somin.)

As Carter observes, the racial dynamics link this to Ferguson, even though there are differences.  As to Ferguson, I've been trying for some time to come up with a way to express why I think that racial aspects, while very real, are a consequence rather than a cause of the problem.  Mostly that has been trying to put into words an intuition that it's beside the point to be arguing whether Michael Brown was a victim or a villain.  

The real issue if you are a law-abiding African-American male, it seems to me, is the fear that somebody vested with police power is going to use deadly force when he or she thinks you are a villain, whether or not you are one.  I suppose people on both sides of the ensuing debate think it makes the argument more compelling if Brown was a victim or was a villain, but it doesn't to me.  That African-American males are disproportionately the target of deadly force, whether justified or not, seems no more surprising than the fact that African-American males are disproportionately prosecuted or imprisoned.  

It doesn't surprise me that my African-American friends feel more personally vested in their own safety than I do, at least on this issue. I don't have any villain friends (as far as I know) of any ethnic variety, but there are African-American men who are my very oldest, dearest, and best friends, my good friends, my students, and my colleagues.  I think there's more than a de minimis chance they could be singled out, and if there's even a .0000000001 chance it's with deadly force, I get it.  It's a fear I just don't have to live with.

There's less factual debate about justification, it seems to me, in the Garner chokehold case.  As Professor Carter points out, regardless how you feel about what the grand jury did, it is hard to see how the crime of selling loosies should lead to the suspect's death during the process of arrest.  Yet if something is criminal, the police have arrest power, and arrest power can be enforced at the point of a gun.  There's the overlap with Ferguson.  If you can be arrested for selling loosies (or anything else), you are legitimately the subject of force, and even if you are a "villain," you can only hope that putting your hands up in the air prevents it from becoming deadly.  And the same applies if you aren't a villain, but the profiled African-American male who just happens to be standing outside the bodega (in the same way that one of my African-American friends was mistaken for the parking lot attendant after leaving a function).   Hence the advice many African-American men have given to their sons about interactions with the police.

What struck home, however, was this from Carter on the subject of there being too much criminalization, the result of which is that very few of us have NEVER violated the law:  "Of course, activists on the right and the left tend to believe that all of their causes are of great importance. Whatever they want to ban or require, they seem unalterably persuaded that the use of state power is appropriate."

I don't mean to trivialize the issue but selling loosies seems to me about as trivial (or more trivial) than failing to pick up dog poop.  But I've recently come close to squaring off with police power in Cambridge, Massachusetts with regard to dog stewardship.  In Cambridge, it's illegal to have your dog[s] off-leash except in specifically designated off-leash areas.  The problem, however, is that Cambridge is a dense city, most people don't have yards sufficiently large to let their dogs run, and the legal off-leash areas are few and far between.  So, to the consternation of some dog-hating neighbors, particular areas, like one of the baseball fields in North Cambridge, become de facto off-leash areas in the morning and the evening, subject to the occasional raids from the Animal Control Officer.

This is where my own conception of right and proper varies from the law.  As long as I am vigilant about cleaning up the dog poop, letting my dogs run off-leash with the other dogs at Rindge Field between 5 and 6 p.m. in violation of the leash law strikes me as a victimless violation.  On the other hand, I've joked that I'd be willing to make it a felony (punishable with prison time) for failing to clean up after one's dog.
 
Several weeks ago, the Animal Control Officer ticketed me for violating §6.04.030 of the Cambridge City Ordinances by having all three of my dogs off-leash on Rindge Field.  At the time, the enforcement provisions of the ordinance, §§6.04.110(A) and (B), provided as follows:

A.  For the purpose of enforcing the provisions of Sections 6.04.030 and 6.04.060 of this chapter, notices of violation (appearance tickets) may be issued by Sanitation Inspectors and Code Enforcement Inspectors detailed with the Department of Health and Hospitals, by persons appointed as Parking Control Officers detailed within the Department of Traffic and Parking, by any Police Officer, and by the Dog Officer and employees of the Water Department recommended by the Water Board and approved by the Chief of Police in those areas under the jurisdiction of the Water Board.

B.  Any owner or keeper of a dog, who has been observed by a Police Officer to have violated any provisions of Sections 6.04.020, 6.04.030, 6.04.040 and 6.04.060 of this chapter, and who refuses to give proper personal identification of his or her person to such Police Officer upon request, shall be subject to arrest.

Being the lawyerly nerd that I am, I knew the text of the ordinance at the time I got the ticket.  The relevant portion of my conversation with the Animal Control Officer went as follows.
 
He asked me my first name.  I replied, "Jeff."
 
He asked me my last name.  I replied "Lipshaw" and spelled it for him.
 
I then asked if he was a police officer.  He said he was the Animal Control Officer, not a police officer.  I said that I was familiar with the city ordinance and that I was not obliged to give him my name.   (My basis for saying this was that the ordinances don't define but do distinguish between the terms "Dog Officer" and "Police Officer.")
 
He then said, "Do you want me to call a police officer?" I said that this wasn't necessary since I had already given him my name.  Indeed, I was not prepared at that point to test the limits of the police power.  He then completed the ticket and asked me to sign it, which I declined to do.  (I have since paid the ticket.)
  
If I had been willing to test the limits of the police power, the Animal Control Officer would have called the police.  At that point, all of my dogs were leashed and not violating any ordinance.  My position would have been that the Police Officer would not have been able to arrest me for refusing to give a name.  The Police Officer, if he or she had come, would not have observed the violation (i.e. the officer would at best have been told by the Animal Control Officer that a violation had occurred).  As the elements of subsection (B) required the Police Officer to have observed the violation, he/she would not have had the right, nor would I have had the obligation, to give him/her my name, and therefore I could not have legally been arrested.
 
To echo Professor Carter's theme about criminalization, there's no doubt that having a dog off-leash is a civil infraction.  But the ordinance does appear to invoke arrest power on a police officer's observation of a civil infraction, and I'm told that is a constitutional extension of the police power.  What if the Animal Control Officer had called the Police Officer, we had a full and frank discussion of the limits of power, agreed to disagree about it, and I had begun to walk away?  Would the police officer be permitted to apply a chokehold to get me into the cruiser?  (And I am deliberately putting aside whether the fact I am a sixty year-old white would have put me at less risk than an young African-American dog walker.)
 
I can't overstate the extent during that exchange that I felt at odds with what seemed like the unjust exercise of power.  Notwithstanding the fact that I want the police to be patrolling my street, in that moment, it was me against The Man.  I've left out of the rendition of the above dialogue what I said before the animal control officer wrote the ticket: "I really wish you had something more important to do."  That was my milk-toasty way of reacting to a person in a blue uniform with official-looking insignia bringing the municipal power of Cambridge down on me.
 
What strikes home about Professor Carter's observation is my own schizophrenia about the application of law, depending on which side of the cause I happen to sit.  I live in a crowded city.  I certainly favor laxity when it comes to off-leash dog walking (not on the sidewalks, of course, but in limited areas at limited times).  But just about every day, I observe something discourteous that annoys the crap out of me, and as to which in the moment of annoyance, I'd gladly see the full weight of state power come to bear on the miscreants, whether it's the failure of drivers in Cambridge to understand the order in which you proceed at a four-way stop or the fact that you MUST stop if a pedestrian is in the crosswalk, the person on the T whose iPod music is so loud it's audible ten feet away, or those who don't have the courtesy to clean up their dogs' damn poop, particularly when I'm so careful about it.
 
The sociologists will tell us that it's an aspect of modernization that regulation of conduct by community norms gives way to regulation by law.  And I don't think many people would suggest we are better off with general lawlessness than the "rule of law."  But I think Professor Carter is absolutely right in making us think about the translation of too many norms of courtesy and common sense into enforceable, and particularly criminal, rights and obligations.  We can let our reactions to norm violations escalate into law, or we can walk away feeling annoyed at the failure to observe custom.  
 
My guess is that the vast majority of police officers don't let power corrupt them.